Regulatory Process Matters and Notes

Executive Order 12866: Regulatory Planning and Review

This final rule has been reviewed by the Office of Management and Budget pursuant to Executive Order 12866. The Board has prepared a regulatory assessment for the final rule. The assessment has been placed in the docket and is available for public inspection. The assessment is also available on the Board’s web site at www.access-board.gov. The assessment is summarized below.

Benefits

Since the enactment of the Americans with Disabilities Act (ADA), accessibility requirements have been increasingly incorporated in the model codes. The Board worked collaboratively with the International Code Council (ICC) and the ANSI A117 Committee to harmonize the final rule with the International Building Code, which was initially published in 2000 and was revised in 2003, and the ICC/ANSI A117.1 Standard on Accessible and Usable Buildings and Facilities, which is referenced in the International Building Code. The International Building Code has been adopted statewide by 28 States, and by local governments in another 15 States.

Harmonizing the accessibility guidelines for the ADA and the Architectural Barriers Act (ABA) with the International Building Code and the ICC/ANSI A117.1 standard promotes increased compliance, efficiency, and economic growth. It is difficult and time consuming for business owners, builders, developers, and architects to deal with different accessibility requirements at the Federal, State, and local government levels. Differing requirements can contribute to mistakes resulting in litigation and costly retrofitting of facilities after they are constructed. The ADA authorizes the Department of Justice (DOJ) to certify State or local codes that meet or exceed Federal accessibility requirements. State and local governments that adopt the International Building Code will find it easier to have their codes certified, and more State and local governments are expected to submit their codes to DOJ for certification. In jurisdictions where codes have been certified by DOJ, business owners, builders, developers, and architects can rely on their State or local government building plan approval and inspection processes as a "check-point" for ensuring that their facilities comply with Federal accessibility requirements. Potential mistakes can be corrected early in the construction process when adjustments can be made easily and inexpensively compared to costly retrofitting after a facility is constructed. Compliance with a certified code is also rebuttable evidence of compliance with Federal accessibility requirements in litigation to enforce the ADA.

The Board also revised some requirements in the existing guidelines for the ADA and the ABA to reduce the impacts on facilities, including lowering the number of wheelchair spaces and assistive listening devices required in large sports facilities; exempting small raised press boxes in sports facilities from the accessible route requirements; exempting parking lots with a few parking spaces from signage requirements for accessible parking spaces; and reducing the number of toilet rooms required to be accessible where multiple single user toilet rooms are clustered at the same location.

Regulatory Alternatives That Eliminate Impacts Estimated for the Proposed Rule

The regulatory assessment for the proposed rule estimated that the rule would have an annual impact of $87.5 million on newly constructed office buildings, hotels, and sports stadiums and arenas. The Board adopted alternatives in the final rule that eliminate these impacts as shown in Table 1.

Visible alarms required in all employee work areas, including individual offices. Estimated cost: $16 million annually.

Visible alarms required in public and common use areas, which is consistent with existing guidelines. Where employee work areas have audible alarm coverage, wiring system required to be designed so that visible alarms can be added to the system as needed.

Elevators and platform lifts required to be provided in sufficient number, capacity, and speed so that persons using wheelchair spaces and designated aisle seats have equivalent level of service as persons in the same seating area who can use stairs. Estimated cost: $1.5 million annually.

Existing guidelines retained, which require at least one accessible route to connect each story and mezzanine in multi-story facilities.

Wheelchair spaces and designated aisle seats required to be dispersed vertically on each accessible level. Estimated cost: $33.5 million annually.

Wheelchair spaces required to be dispersed vertically at varying distances from the screen, performance area, or playing field, which is consistent with existing guidelines.

Companion seats permitted to be removable, but not required to provide additional wheelchair spaces.

One percent of seats required to be designated aisle seats; 25 percent of designated aisle seats required to be on an accessible route; and rest of designated aisle seats required to be not more than two rows from an accessible route. Estimated cost: $1.5 million annually.

Five percent of aisle seats required to be designated aisle seats and to be aisle seats closest to accessible routes.

Baseline

The assessment compares the final rule to ADAAG and the International Building Code in order to evaluate the potential impacts of the rule. In the absence of the final rule, newly constructed and altered facilities covered by the ADA would have to comply with ADAAG as initially issued in 1991, which has been adopted as enforceable standards by DOJ. Many newly constructed and altered facilities covered by the ABA are also required to comply with ADAAG when it provides a greater level of accessibility compared to the Uniform Federal Accessibility Standards (UFAS). Comparing the final rule to ADAAG is the upper bound of the range of potential impacts. The International Building Code has been adopted statewide by 28 States and by local governments in another 15 States. In the absence of the final rule, newly constructed and altered facilities are required to comply with the International Building Code in jurisdictions that have adopted the model code. Comparing the final rule to the International Building Code is the lower bound of the range of potential impacts, and assumes that facilities covered by the ADA or the ABA are also required to comply with equivalent requirements in the International Building Code. The actual impacts will be between the lower and upper bound of the range.

Potential Impacts of Final Rule

The final rule reorganizes and renumbers ADAAG, and rewrites the text to be clearer and easier to understand. Most of the scoping and technical requirements in ADAAG have not been changed. An independent codes expert compared the final rule and ADAAG to identify revisions that add new features or space to a facility, or present design challenges. The codes expert identified 27 revisions that are expected to have minimal impacts on the new construction and alteration of facilities, including adding scoping requirements and exceptions for common use circulation paths in employee work areas; revising scoping requirements for public entrances; referencing the International Building Code for accessible means of egress; adding scoping requirements for dwelling units with mobility features in Federal, State, and local government housing; lowering the high side reach; and adding technical requirements for automated teller machines and fare machines.

The codes expert also identified 14 revisions that are expected to have monetary impacts on the new construction and alteration of facilities. An independent cost estimator prepared cost estimates for these revisions using standard industry procedures. The revisions that are expected to have monetary impacts on the new construction and alteration of facilities are summarized in Table 2.

Table 2 – Revisions with Monetary Impacts on New Construction and Alterations

Private facilities required to provide public TTY in building with 4 or more public telephones and on floor with 4 or more public telephones.

Government facilities required to provide public TTY in building with public telephone and on floor with public telephone.

Private and government facilities required to provide public TTY on site with 4 or more public telephones, and in bank of 4 or more public telephones. Banks of public telephones located within 200 feet of, and on same floor as, another bank of telephones with public TTY exempt.

Bus or rail station with public telephone at entrance required to provide public TTY.

Public rest stops with public telephone required to provide public TTY.

Private facilities with 4 or more public telephones required to provide public TTY.

Government facilities with public telephone in public use area of building required to provide public TTY.

Rail stations with 4 or more public telephones at entrance required to provide public TTY.

IBC 2000 (Appendix E) has equivalent requirement to final rule for private facilities.

IBC 2003 (Appendix E) has equivalent requirement to final rule for private and government facilities.

$2,320

At least one operable window in accessible rooms required to comply with technical requirements for operable parts. Hotel guest rooms that are not required to provide mobility features and dwelling units are exempt.

No requirement.

IBC 2000 & 2003 have equivalent requirements to final rule for certain occupancies.

Two percent of dwelling units in Federal, State, and local government housing required to provide communication features.

No requirement.

No equivalent requirement to final rule.

$96 for visual signal if door bell and peephole provided.

$322 for doorbell with visual signal and peephole.

$353 for TTY connection if voice communication system provided at entrance.

National Costs

Office buildings, hotels, hospitals and nursing homes, and Federal, State, and local government housing will be affected by many of the revisions in Table 2, and are likely to experience relatively higher monetary impacts than other facilities. The assessment estimates the national costs of the revisions on these facilities based on annual construction data. The national costs are summarized in Table 3.

The assessment also estimates the additional costs imposed on individual facilities as a percentage of total construction costs as shown in Table 4.

Table 4 – Additional Costs for Individual Facilities

Facility

Additional Costs as Percentage of Total Construction Costs Compared to

ADAAG Upper Bound

International Building CodeLower Bound

Office Buildings

0.02 to 0.10 %

0.01 to 0.08 %

Hotels

0.06 to 0.50 %

0.04 to 0.30 %

Hospitals & Nursing Homes

0.02 %

0.00 %

Government Housing

0.01 %

0.01 %

The final rule will potentially impact the new construction and alteration of other types of facilities. Industry reports estimate $152 billion of non-residential building construction projects were started in 2002; and government reports estimate $264 billion of non-residential building construction work and $6 billion of Federal, State and local government housing construction work was installed in 2002. In order to be considered an economically significant regulatory action (i.e., annual impact on the economy of $100 million or more), the final rule would need to have impacts ranging from 0.04 percent to 0.07 percent of industry and government construction estimates. The final rule will have impacts within or above this range on office buildings and hotels, and it is likely that the impacts on some other facilities will be within or above this range. Although the impacts are not significant for an individual facility, when added together across the economy the impacts can be economically significant. Because an extremely low threshold of impacts on individual facilities can render the final rule economically significant, and because the benefits of the final rule are unquantifiable but substantial, the Board has classified the final rule as an economically significant regulatory action.

The final rule will also affect leased postal facilities. When the United States Postal Service enters into a new lease for a postal facility, including previously occupied space, it will have to comply with the accessibility requirements in the final rule for facilities leased by Federal agencies, including providing accessible customer service counters and van accessible parking spaces. The United States Postal Service leases 27,000 postal facilities, and estimates that it will cost $9,234 per facility to comply with the final rule. The United States Postal Service enters into an average of 1,661 new leases per year for postal facilities, and estimates it will cost $15.3 million annually for leased postal facilities to comply with the final rule.

Regulatory Flexibility Act

For the proposed rule, the Board certified that the rule had no significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act. The Board based the determination on the regulatory assessment prepared for the proposed rule under Executive Order 12866 which showed that, except for large sports facilities, the rule added less than 0.5 percent to the total construction costs of the affected facilities compared to ADAAG; the 1998 edition of the ICC/ANSI A117.1 Standard on Accessible and Usable Buildings and Facilities; and the new International Building Code, which was under development and was expected to be widely adopted by State and local governments.

The Small Business Administration and business groups objected to the certification of no significant economic impact. They noted that the ICC/ANSI A117.1 standard is a voluntary consensus standard, and there was no factual information presented in the regulatory assessment for the proposed rule showing the ICC/ANSI A117.1 standard had actually been adopted by State and local governments. Since the proposed rule was published in November 1999, the new International Building Code has been published. The 2000 and 2003 editions of the International Building Code reference the 1998 edition of the ICC/ANSI A117.1 standard for technical requirements. The International Building Code has been adopted statewide by 28 States, and by local governments in another 15 States.

For the final rule, the regulatory assessment evaluates the impacts of the rule by separately comparing the revisions to ADAAG and the International Building Code. The assessment estimates the additional costs of the revisions as a percentage of the total construction costs for office buildings, hotels, hospitals and nursing homes, and Federal, State, and local government housing. These facilities are likely to experience relatively higher monetary impacts than other facilities. The final rule adds 0.01 to 0.5 percent to the total construction costs of the facilities compared to ADAAG; and 0.00 to 0.3 percent to the total construction costs of the facilities compared to the International Building Code. These monetary impacts are not significant for individual facilities.

The Small Business Administration and business groups request the Board to analyze the impacts of the final rule on alterations to existing facilities. The impacts will be facility specific and will depend on the elements and spaces that are altered in an existing facility. The regulatory assessment examines the impacts of the revisions that have monetary impacts on alterations to existing facilities by answering a series of questions about whether the element or space is typically altered; whether the element or space is part of the "path of travel" serving a primary function area; and whether the general exception for technical infeasibility may apply to alterations of the element or space. The regulatory assessment also includes alteration projects in the national cost estimates of the revisions.

Finally, the Small Business Administration and business groups request the Board to analyze the impacts of the final rule on the obligation of businesses under the ADA to remove architectural and communication barriers in existing facilities, where it is readily achievable. DOJ will revise the accessibility standards for the ADA after this final rule is published. Business groups are concerned that, when the accessibility standards for the ADA are revised, existing facilities that were constructed or altered in compliance with earlier accessibility standards will have to undergo "barrier removal" and meet any new or different scoping and technical requirements in the revised accessibility standards. Business groups recommend that existing facilities constructed or altered in compliance with earlier accessibility standards be "grandfathered" for purposes of "barrier removal." The Board acknowledges that "barrier removal" obligations need to be clarified when the accessibility standards are revised. However, the Board has no authority to issue regulations regarding "barrier removal" obligations. DOJ is the agency responsible for issuing regulations regarding "barrier removal" obligations, and is required to analyze the impacts of any new or different scoping and technical requirements on "barrier removal" obligations when the accessibility standards are revised.

On the basis of the regulatory assessment for the final rule, the Board certifies that the final rule has no significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act.

Executive Order 13132: Federalism

The final rule adheres to the fundamental federalism principles and policy making criteria in Executive Order 13132. The final rule is issued pursuant to the ADA and the ABA to ensure that facilities covered by those laws are readily accessible to and usable by people with disabilities. Ensuring the civil rights of groups that have been subject to discrimination has long been recognized as a national issue and a proper function of the Federal government. The ADA was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and "to ensure that the Federal government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities." 42 U.S.C. §12101 (b) (1) and (3). The ADA recognizes the authority of State and local governments to enact and enforce laws that "provide greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter." 42 U.S.C. §12201 (b). The ABA applies to federally financed facilities. The final rule has been harmonized with model codes and standards that are adopted by State and local governments to regulate building construction. The Board consulted with State and local governments throughout the rulemaking process. State and local governments were on the advisory committee which recommended revisions to the guidelines, participated in public hearings, and submitted comments on the proposed rule.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act does not apply to rules that enforce the constitutional rights of individuals or enforce statutory rights that prohibit discrimination on the basis of race, color, sex, national origin, age, handicap, or disability. Since the final rule is issued under the authority of the ADA and the ABA, an assessment of the rules impacts on State, local, and tribal governments, and the private sector is not required by the Unfunded Mandates Reform Act.

For the reasons stated in the preamble, under the authority of 29 U.S.C. 792(b)(3) and 42 U.S.C. 12204, the Architectural and Transportation Barriers Compliance Board amends chapter XI of Title 36 of the Code of Federal Regulations as follows:

(a) The accessibility guidelines for buildings and facilities covered by the Americans with Disabilities Act are set forth in Appendices B and D to this part. The guidelines serve as the basis for accessibility standards adopted by the Department of Justice and the Department of Transportation under the Americans with Disabilities Act.

(b) The accessibility guidelines for buildings and facilities covered by the Architectural Barriers Act are set forth in Appendices C and D to this part. The guidelines serve as the basis for accessibility standards adopted by the General Services Administration, the Department of Defense, the Department of Housing and Urban Development, and the United States Postal Service under the Architectural Barriers Act.

10 The American Council of the Blind, the American Institute of Architects, the American Society of Interior Designers, the Arc, Builders Hardware Manufacturers Association, Building Officials and Code Administrators International, Building Owners and Managers Association International, Council of American Building Officials, Disability Rights Education and Defense Fund, Eastern Paralyzed Veterans Association, International Conference of Building Officials, International Facility Management Association, Maryland Association of the Deaf, National Conference of States on Building Codes and Standards, National Easter Seal Society, National Fire Protection Association, National Institute of Building Sciences, Regional Disability and Business Technical Assistance Centers, Southern Building Code Congress International, Texas Department of Licensing and Regulation, Virginia Building and Code Officials Association, and the World Institute on Disability.

11 67 FR 15509

12 65 FR 62498

13 67 FR 56352

14 67 FR 56441

15 29 U.S.C. § 701 et seq.

16 47 U.S.C. §§ 153, 255

17 36 CFR part 1193

18 36 CFR part 1194

19 29 U.S.C. § 794 (d)

20 29 U.S.C. § 794

21 24 CFR § 8.22 (b)

22 59 FR 17442 (April 12, 1994)

23 61 FR 39323 (July 29, 1996) and 63 FR 64836 (November 23, 1998)

24 49 CFR 37.9(d)

25 28 CFR part 36, section 36.303

26 The Fair Housing Amendments Act of 1988 expanded coverage of Title VII of the Civil Rights Act of 1968 (42 U.S.C. 3601-3620) to prohibit discriminatory housing practices based on handicap and familial status.